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Wednesday, December 01, 2004

More Booker and Fanfan speculation

Over at SCOTUS Blog, Tom Goldstein here builds on Marty Lederman's speculation about what a question asked by Justice Ginsburg at oral argument yesterday might tell us about the eagerly anticipated Booker and Fanfan. As I noted here, the Ginsburg question prompted Marty to suggest we might not see a decision until at least January.

Interestingly, Tom is not convinced the Ginsburg question hints at a long wait for the Booker and Fanfan opinion. But Tom thinks the question "does suggest (albeit certainly not decisively) ... that the government lost Booker/Fanfan." This speculation dovetails with my own prognosticating here that the time it is taking for the Court issue an opinion is a sign that the Justices have decided to apply Blakely to the federal system but are struggling with the severability issue.

Tuesday, November 30, 2004

A long wait for Booker and Fanfan?

Marty Lederman over at the SCOTUS Blog has this fascinating post which speculates, based on a question Justice Ginsburg asked today during oral argument, that we might not be getting a decision in Booker and Fanfan until at least January. (The post concludes, however, with Marty willing to "venture to predict a decision next week -- say, on December 8th.")

Interestingly, though just earlier today I was urging the Supreme Court to "get on the stick," I am not sure there should be a big rush now that I have seen the USSC's preliminary post-Blakely case processing data. Though this data tells (and perhaps hides) a lot of different stories, I cannot help but get a sense that the vast majority of criminal cases are still moving through the federal system despite all the Blakely uncertainty.

With the federal criminal justice apparently still functioning pretty well, the Supreme Court should definitely take all the time it needs to render a complete and clear decision in Booker and Fanfan.

Gauging the impact of delay and uncertainty

I am trying not to be grumpy about having to continue to wait for a ruling in Booker and Fanfan. After all, the Supreme Court is obviously hard at work, as evidenced by the big arguments yesterday in Ashcroft v. Raich, the medical marijuana/federalism case (lots of details here and here), and also by the (civil law) opinion issued today with five Justices writing.

Nevertheless, I might have a hard time avoiding grumpiness if I was a judge, lawyer or defendant trying to move forward with my docket or my life at this time of great sentencing uncertainty. The issues in Booker and Fanfan have been in stark relief for nearly five months since Judge Cassell in Croxford and Judge Goodwin in Shambin set out the Blakely basics for federal sentencing. And many federal circuits weighed in with major opinions within weeks of Blakely (e.g., the 7th Circuit heard argument and ruled in Booker only two weeks after Blakely, the 2d Circuit issued its in banc certification ruling only a few days later, and four other circuits had at least partially weighed on Blakely before the end of July).

Of course, getting Booker/Fanfan and federal sentencing done right is much more important than getting it done fast (which is a useful lesson for Congress when it considers responses to Booker and Fanfan). Thus, the Court should take whatever time it needs to issue a great opinion. But, with so many federal cases likely on hold and now backed up awaiting Booker and Fanfan (as noted here and here), not to mention all the states also looking for more Blakely guidance ASAP, I suspect that the continued delay is having a profound impact on the administration of criminal justice throughout the country.

I am hopeful that the US Sentencing Commission might soon release the data it has about post-Blakely case processing, which could provide a clearer picture of where matters stand while we all wait. But in the meantime, perhaps readers might use the comments to report on the impact of the continued delay and uncertainty.

They're still not here: more waiting for Booker and Fanfan

The eagle still has not yet landed. This morning the Supreme Court did not issue its opinion in the eagerly anticipated Booker and Fanfan. All of us, and sentencing courts around the country, will just have to keep waiting. According to this SCOTUS Blog post, there are only a few more days this year on which the Court is likely to issue opinions. I am starting now to wonder whether we will see a decision before January (although I will surely keep crying wolf every time the Supreme Court announces an opinion is forthcoming).

Since now it appears that a decision in Booker and Fanfan has taken at least a full two months since argument in early October (and a full four months since the cert. grant in early August), it is hard not to speculate that the Court is struggling with the second severability issue (some background here). Though this is a bit like making predictions based on how long a jury is out, I think we would have seen a pretty quick decision if there were five votes to keep Blakely from applying to the federal system.

Additonal posts of note and other background materials on Blakely and Booker and Fanfan can also be found on this Blakely Basics page. And, of course, a wealth of additional information can be accessed through the various Booker/Fanfan and Blakely page links in the right side-bar.

Is today the day for Booker and Fanfan?

With the Supreme Court having indicated that an opinion is to be issued today, I am hopeful that later this morning the Godot-like wait for Booker and Fanfan will end. As discussed before here, much in the sentencing world (both federal and state) has been put on hold awaiting further Blakely guidance, and thus a decision cannot come too soon.

Interestingly, this article from the Pittsburgh Post-Gazzette indicates that the decision is "expected this week -- maybe as soon as today." The article also notes that "most of the 10 judges on the federal bench [in Pittsburgh] have been taking a wait-and-see approach on the issue ever since the June 24 Supreme Court decision in Blakely v. Washington." And the article closes by detailing that, while waiting for more guidance, the federal judges in Pittsburgh have rendered disparate rulings about the federal guidelines constitutionality.

UPDATE: Marty Lederman at the SCOTUS Blog confirms here that the Supreme Court will issue at least one opinion today, but none more this week.

Saturday, November 27, 2004

CJ Rehnquist still ailing and out

According to articles in the AP and the NY times and the Washington Post, Chief Justice Rehnquist will be absent from the Supreme Court through its December session (which start Monday) while he continues to receive chemotherapy and radiation treatments as an outpatient and works from his home.

This news will surely fuel the continued speculation that CJ Rehnquist may retire quite soon, and it also has me still wondering how his health might be impacting the Court's work on the Booker and Fanfan cases. Moreover, it is worth remembering that CJ Rehnquist is one of the critical five votes supporting the decisions in Harris, which allows judges to find facts that enhance minimum sentences, and Almendarez-Torres exception, which allows judges to find "prior conviction" facts that enhance sentences.

Though I am sure the Blakely discussion will take a back seat to other hot-button social issues like abortion, it is worth noting the possible impact on criminal law jurisprudence if and when CJ Rehnquist retires. The future of sentencing reform could be, at least partially, in the hands of CJ Rehnquist's eventual successor.

Tuesday, November 09, 2004

Lots to do while we wait

My knowledgeable sources tell me that the earliest we would see an opinion in Booker and Fanfan is now November 15, and they also say that November 29 (the Monday after Thanksgiving weekend) is even more likely. Fortunately, there are lots of Blakely activities to keep us busy in the meantime.

If you are in a Supreme Court mood, you can follow the happenings in the other Washington and Indiana. Starting this morning, the Washington Supreme Court will be considering a series of Blakely cases and issues over two days as detailed here and here, and you can even hear a live webcast of tomorrow morning's Blakely-related cases in the Indiana Supreme Court here. The Seattle Post-Intelligencer in this article previews the Washington cases with a focus on the retroactivity; INCourts and the Indiana Law Blog will surely provide great coverage of the Indiana cases.

If you want to focus on what's going on in the trial courts, you can keep on eye on the work of the sentencing jury in the Enron Nigerian barge case (background here), which according to this report is back to deliberating over contested sentence-enhancing guideline factors. Or you can study this Administrative Order Regarding Sentencing After Blakely from Rhode Island US Judge William E. Smith (it is two months old, but I just came across it). Or you can lament that, according to this report, white supremacist Matt Hale's sentencing is being delayed until we see a decision in Booker and Fanfan.

And if you want to focus on the work of a commission, you can join me in gearing up the this US Sentencing Commission hearing next week. Though I believe the hearing's witness list is still being finalized, I have heard that a number of the folks who wrote for the Federal Sentencing Reporter'sBlakely Issues (16.5 and 17.1) have been invited to testify. I will provide more details, and copies of any written materials I receive (such as the PAG Letter here), as soon as possible.

Booker and Fanfan pre-reading guide

If Booker and Fanfan are decided today — and that is still a big "if" — there will be so many ways to examine and assess what the Supreme Court says (and does not say). Besides obviously being concerned with the basic holding and vote count, I will also be thinking about:

1. Who writes the majority opinion and any concurrences or dissents.

2. Whether the Court's opinion discusses constitutional provisions other than the Sixth Amendment and how the Court handles precedents like Watts and McMillan and Williams.

3. Whether the Court's opinion, directly or indirectly, speaks to the continued vitality after Blakely of recent key precedents like Almendarez-Torres and Harris (background on these issues can be found here).

5. Whether the Court's opinion, directly or indirectly, speaks to issues confounding state courts such as Blakely's applicability to consecutive sentencing determinations or the scope of the "prior conviction" exception (or the dozens of other smaller "Blakely scope" issues).

I could go on — there are also many questions about permissible remedies for current cases and advising other branches about how to handle future cases — but I am already exhausted just thinking through all the issues. What I fear most before seeing any opinion is the prospect of a deeply fractured Court creating uncertainty on even those issues it directly addresses. Here's hoping that, no matter what the Court says, it speaks with a relatively clear voice.

Monday, November 08, 2004

No so fast?

Responding to my speculation here that Booker and Fanfan are coming from SCOTUS tomorrow, Marty Lederman in comments here says he "would be very surprised if the Court decided Booker and Fanfan tomorrow. If I had to predict, I'd say December 7th, 8th or 13th." He and the always knowledgeable Howard Bashman reasonably suggest that the complexity of the severability issue may prevent the Court from such quick action. As Howard explained to me in an e-mail:

Those who are predicting that opinions in the Federal Sentencing Guidelines (FSG) cases won't be issued tomorrow are probably basing their prediction on the complexity of the FSG cases and the likelihood that they will draw one or more dissenting opinions. The first opinion(s) of the Term tend to be quick, short, unanimous rulings.

And Marty followed-up: "if the Court perceives that there really is a crisis that needs immediate resolution, it could well decide the cases this week, or next Monday, or November 30th/December 1st." So, even if we do not get Booker and Fanfan tomorrow, we will at least have some more tea leaves to read about what the Court is thinking.

And speaking of reading tea leaves, I wonder if Appendi/Blakely/Booker issues came up in today's Supreme Court oral argument in Shepard v. US. The SCOTUS Blog has this helpful summary of the case, and I have highlighted previously here that the case might provide the Court a chance to speak to the continued validity and scope of the Appendi/Blakely "prior conviction" exception.

Thursday, November 04, 2004

One month and counting...

Today marks exactly a month since Booker and Fanfan were argued, and the federal sentencing world still awaits an opinion. Obviously, with news of Chief Justice Rehnquist's poor health and a full SCOTUS caseload, it is perhaps unsurprising that the (likely divided) Court has not yet been able to clarify the state and fate of the federal sentencing world after Blakely. However, as suggested here, I think we will be seeing a decision handed down relatively soon.

The recent decision by US District Judge Stewart Dalzell in US v. Cropper, 2004 U.S. Dist. LEXIS 21949 (E.D. Pa. Nov. 2, 2004), highlights why a decision in Booker and Fanfan cannot come soon enough for the Justice Department. Cropper involves the government's effort, after filing a superceding indictment with "Notice of Additional Factors" involving various (non-conviction) criminal history facts, to have the factors submitted to the jury "either in the Government's case-in-chief or in a bifurcated trial." Notably, the defendant "expressed vigorous opposition to submitting any of the factors to the jury at the trial that will begin on November 8, 2004."

Here's an abridged account of Judge Dalzell's explanation for his decision to "decline to submit the sentencing factors to the jury:"

We are especially puzzled at the Government's position in view of what it said to the Supreme Court of the United States in United States v. Booker and United States v. Fanfan, Nos. 04-104 and 04-105, which were argued on October 4, 2004..... [There] the Acting Solicitor General [asserted that] "[r]eplacing the statutory gap in the Guidelines system with a novel system of jury trials for sentence-enhancing facts would be fraught with the same grave difficulties [deemed improper in US v. Jackson, 390 U.S. 570 (1968)]. Indeed, it would require judicial legislation on a far greater scale than the approach rejected in Jackson, because the Guidelines apply in every federal criminal prosecution."

Although we have elsewhere predicted that the Supreme Court will apply Blakely to the Guidelines, see United States v. Leach, 325 F. Supp. 2d 557 (E.D. Pa. 2004), we did not predict the consequences of such a holding beyond Guideline-based enhancements. A review of the transcript of the October 4, 2004 oral argument in Booker and Fanfan reveals that the consequences beyond what we held in Leach are very much up in the air. Until the Supreme Court decides Booker and Fanfan, however, it seems to us not extravagant to take the Government at the word expressed by the Acting Solicitor General in Booker and Fanfan rather than at the word of the local prosecutor here.

Sunday, October 24, 2004

Conceptualizing Blakely (in draft)

Professor Charles Fried had this interesting op-ed, entitled "Courting Confusion," in the NY Times Thursday (which has already generated interesting responses from Professors Jack Balkin and Stephen Bainbridge and Ann Althouse). Though I am disinclined to weigh into the broader jurisprudential scrum, the last line in Professor Fried's discussion of the work of the Supreme Court caught my eye:

I fear an indefinite and incoherent prolongation of a fin-de-siècle jurisprudence, where the court serves as nothing more than an ad hoc arbiter of issues it finds too difficult to decide in a principled way.

Though Professor Fried does not discuss Blakely in his op-ed, his closing words certainly fit what many may fear is the future of sentencing jurisprudence in the wake of Blakely. But, as I first previewed in this post, I have been working on finding Blakely's core principle in an article entitled "Conceptualizing Blakely" for the next issue of the Federal Sentencing Reporter.

I have now finished a working draft of "Conceptualizing Blakely" that is fit for public sharing. Though I feel this draft only starts to scratch the conceptual surface of Blakely, I hope I advance the analysis a bit. I heartily welcome reactions and suggestions either in the comments here or via e-mail.Download working_draft_of_conceptualizing_blakely.rtf

Friday, October 15, 2004

Read all about Booker and Fanfan

Hooray, the Supreme Court transcript in Booker and Fanfan is now available here (thanks to a reader for the tip). It is a great read — all 110 pages! — though I think most of the highlights have been previously detailed in press and blog reports.

I continue to find especially noteworthy and important the effort by Justice Kennedy at pp. 24-25 to figure out whether there is some way to distinguish different facts for Blakely purposes. Though Justice Kennedy does not expressly articulate the sort of offense/offender distinction that I discuss here, it seems clear that he is eager to avoid a post-Blakely world in which, for purposes of the jury trial right, we must be "in for a penny, in for a pound."

As I hope to explain later today at this conference (which will likely be keeping me off-line), I continue to believe my offense/offender distinction creates a sound and sensible way to divide up which facts must go to a jury. Moreover, a re-reading of Almedarez-Torres pointed me to the old case of Graham v. West Virginia, 224 U.S. 616, 629 (1912); in Graham, the Court permits the use of distinct procedures when sentencing on the basis of prior convictions, and justifies the ruling with this telling passage:

This conclusion [that a prior conviction can be subject to different procedures] necessarily follows from the distinct nature of the issue and from the fact, so frequently stated, that it does not relate to the commission of the offense, but goes to the punishment only, and therefore it may be subsequently decided.

Saturday, October 09, 2004

Blakely: the academic gift that keeps on giving

I cannot resist the urge to end an amazing day at the Stanford Roundtable conference (details here and here) with a few very general reflections about the event and Blakely.

First, Professor Bob Weisberg (along with the Stanford students and staff) deserve great credit for setting the absolute gold standard for an academic event. (And I am not just saying this because I know event planners and participants may be reading.) The event's logistics have been wonderfully planned and executed. And, more importantly, the collection of superstars assembled — including not only so many leading sentencing academics, but also lawyers from all sides of Blakely and judges and members of sentencing commissions — is truly remarkable.

Second, the array of perspectives and insights which can be brought to bear on Blakely continues to astound me. Throughout the afternoon, I heard so many intriguing ideas and predictions — ranging from the "true" concerns of Justice Scalia, to the need for federal criminal code reform, to the possible impact of 9/11 on "regular" criminal justice policy to the expected fate of Harris and Almendarez-Torres — and I am leaving out dozens of other important matters. I am not even going to try to summarize this Blakely bacchanalia; I would need dozens of posts to even begin to do the event justice.

Third, I was very pleased to have an opportunity to articulate to this amazing group my nascent views about conceiving the Blakely rule — and more generally the broad project of sentencing reform — using two deceptively simple distinctions: a distinction between offense factors and offender factors and a distinction between factual determinations and legal determinations at sentencing. Like all simple distinctions, my budding notions of offense/offender and fact/law distinctions at sentencing are fuzzy and need considerable development. However, I continue to believe that such distinctions can significantly advance our understanding of the meaning and perhaps limited reach of the Blakely rule, and that they can also be of great value as we starting charting a new course for the future of sentencing reform.

Finally, as if the day was not entertaining enough, the evening was capped off with the excitement of knowing that we now may be only one game away from setting up another truly epic Yankees-Red Sox playoff battle.

Thursday, October 07, 2004

The Data Underground

I am now in California, which means a lot of pacific time blogging in the days ahead. And I will, later tonight, have some substantive points to make about the USSC data memo which is now available to the world (and here). But for now I just cannot resist, as a fan of Lou Reed and the Velvet Underground, noting that it was Lou Reedt who analyzed the Blakely data that the USSC kept mostly underground until now.

So, let's all sing along with a true Lou Reed classic:
Take a walk on the Blakely side
Said, Hey babe
Take a walk on the Blakely side
And the Justices go
doo do doo do doo do do doo.....

The data plot thickens

As many readers know, I have long been obsessing over just how many federal cases have Blakely factors and how different rulings in Booker and Fanfan could impact the operation of the federal sentencing system. (See generally posts here and here and here and here.) And, as detailed here, I was fascinated by a representation in the Acting Solicitor General's reply brief concerning the number of cases that involve Blakely factors, which was apparently based upon a U.S. Sentencing Commission internal memo that I thought was not publically available.

This data story has taken an interesting turn based on a letter I received this morning (which can be downloaded below) that was apparently filed by the Acting SG with the Supreme Court yesterday. The letter "proposes to lodge material with the Clerk that is relevant to" Booker and Fanfan — namely "a copy of a three-page memorandum dated July 20, 2004, from Lou Reedt to Tim McGrath on the subject 'Estimate of Number of Cases Possibly Impacted by the Blakely Decision,' which the Commission’s General Counsel made available to the Office of the Solicitor General." As the Acting SG's letter explains:

The memorandum’s author, Dr. Lou Reedt, is Director (Acting), Office of Policy Analysis, United States Sentencing Commission. The memorandum's recipient, Tim McGrath, is Staff Director of the United States Sentencing Commission.

The Commission informs us that the memorandum is an internally generated staff document prepared in an effort to project what the impact of Blakely might be, and that it has been made available to anyone who has requested it.

Fascinatingly, this "lodging letter" to the Supreme Court then goes on to make substantive points — as if this letter was a supplemental brief — about the way the Supreme Court ought to interpret the data in the Sentencing Commission's memo:

The government does not agree with all of the assumptions and speculations made in the memorandum, particularly with respect to the extent to which plea agreements may reduce the impact of applying Blakely to the Guidelines through stipulations or waivers. The extent to which such plea agreements could or would reduce the impact of applying Blakely to the Guidelines is unknown. Even under the most conservative assumptions in the memorandum (i.e., that applying Blakely to the Guidelines does not increase the trial rate and that all guilty plea cases validly resolve Blakely issues), however, the data still suggest that 65% of the federal criminal cases that go to trial will pose Blakely issues. Despite the limitations of the document, the underlying data may prove helpful to the Court in assessing the impact of applying Blakely to the Guidelines.

I am very pleased to learn that the SG now wants the Supreme Court to see the US Sentencing Commission's memo, and I am also very pleased to learn that I can receive a copy of the memo upon request. And, if anyone official at the USSC is reading, please consider this post a formal request for the three-page memorandum dated July 20, 2004, from Lou Reedt to Tim McGrath (though I might have thought this prior post entitled "Please, please share your data USSC" should have reasonably been understood as a sufficient request).

Yet, as is always the case, questions abound:

Why didn't the US Sentencing Commission, supposedly an independent judicial branch agency, submit this memo directly to the Supreme Court with its own amicus brief (or, better still, a month earlier when the Supreme Court was considering a set of Blakely-related cert. petitions)?

Why won't the USSC, which is now representing that this memo is a public document, post this memo on its website?

Has the USSC made this information available to all — or any — lower federal court judges who have been considering Blakely cases?

Will the defense team in Booker and Fanfan have an opportunity to file a "reply letter" in order to provide its view of what should be drawn from the USSC's memo?Download sg_booker_lodging_letter.pdf

Trying to be David Letterman

Without further ado, I now provide my "Top Ten List of Cool Moments from my DC Day." Though I could probably make a list of about 100 cool moments, here are 10 that still linger in my mind from spending Monday hanging out around the US Supreme Court and hearing the arguments in Booker and Fanfan.

Wednesday, October 06, 2004

Being Antonin Scalia

Though surely it would not make for as entertaining a movie as Being John Malkovich, these days it is hard to resist the urge to try to get inside Justice Scalia's head to figure out exactly what makes him tick and explains his votes in the Blakely line of cases. Helpfully, those interested in doing just that can perhaps get a bit of the experience through two articles recently sent my way.

First, from Professor Rory K. Little, we have an article which appeared on Monday in the Daily Journal (and appears here with permission) entitled "Supreme Court Decisions on Sentencing Ignore Intentions of Constitution's Framers." Professor Little, who drafted an unsuccessful re-hearing petition for the state of Washington after it's "loss" in Blakely (available here), speculates in this piece that "Justice Scalia has foreseen, well ahead of most observers, the overall negative results for criminal offenders in his post-Blakely world." The piece contains a number of other interesting observations, and can be downloaded here:Download blakely_daily_journal_article_october_04.rtf

Also trying to get inside Justice Scalia's head is attorney Donald V. Morano, though his piece entitled "Justice Antonin Scalia: His Instauration of the Sixth Amendment in Sentencing" mines the written words of the author of Blakely. Indeed, Morano's piece provides a formal analysis of the words of Justice Scalia going back to Mistretta, and it develops intriguing ideas about not only where Blakely might go, but also about the decision's potential retroactivity. Here's the article:Download justice_scalias_insaturation.doc

Tuesday, October 05, 2004

Justice Breyer's (lack of) perspective

As noted here, Duke University Law Professor Erwin Chemerinsky has been saying that Justice Stephen Breyer should recuse himself in Booker and Fanfan because he "is one of the 'parents' of the federal sentencing guidelines." Though I am not sure recusal is appropriate, it was clear from many of Justice Breyer's questions at oral argument yesterday that, like all parents, Justice Breyer does have a somewhat rose-colored perspective when he considers his guidelines "baby."

Only with the oral argument transcript (whenever it is available here) will I be able to effectively highlight how Justice Breyer's questions revealed his essential affinity for the existing guidelines. But I can here report that the overall tone of his questions — just like the overall tone of his Blakely dissent — seems infused with the belief that the federal guideline system he helped create (with its "relevant conduct" rules which require punishment on uncharged, unproven and even acquitted conduct) is the only way to develop a workable guideline system that limits the impact of prosecutorial plea bargaining and matches up real conduct and real punishment.

Beyond basic concerns about "parental" bias, Justice Breyer's positive views about the federal guidelines seem to be largely out-of-touch with the real day-to-day operation of the system (at least as I hear it described by trial judges and lawyers). Consider as evidence of a more sober reality the recent report (available here) from the American College of Trial Lawyers, tellingly titled "United States Sentencing Guidelines 2004: An Experiment That Has Failed." This report, which should be a must read for everyone contemplating the future of federal sentencing reform, thoughtfully explains why:

— "the [existing federal] Guidelines have created a sentencing system wherein the power to make decisions about sentencing has effectively been transferred from the judge to the prosecutor"
— "the 'real-offense' feature of federal sentencing greatly exacerbates unfettered prosecutorial discretion and promotes questionable prosecutorial practices"
— "difficulty in uniformly applying the multiple and complex provisions of the Guidelines and the variations in prosecutorial practice [together with variable departure practices] have resulted in disparate sentences imposed under the same Guideline provisions"

and finally

While the goal of eliminating unfair disparity in federal sentences was laudable, the Guidelines themselves are an experiment that failed. The Guidelines, together with the increasing number of mandatory minimum sentences, have created a system that is too complex, rigid and mechanistic. The existing system places the goal of uniformity above all other policies and, most significantly, above the goal of justice in the individual case. The elimination of unfair disparity in sentencing, to the extent this has been accomplished, has been only superficial.

Put another way, though Justice Breyer's vision of the federal guidelines may be sound in theory, it has proven problematic in practice. Moreover, though Justice Breyer obviously fears a charge-offense guidelines system could exacerbate the impact of pleas and prosecutorial power, the basic success of most state guideline systems has shown that charge-based systems can be generally effective. (Or, at the very least, they are not obviously much worse than the existing federal system when it comes to the impact of prosecutorial power). See generally Richard S. Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty-Year Retrospective, 12 Fed. Sent. Rep. 69 (1999).

In sum, reports from inside the system indicate that Justice Breyer's federal guidelines "baby" in fact suffers from at least a touch of jaundice. Whether the application of Sixth Amendment rights will cure the "baby" remains to be seen, but I hope Justice Breyer is able to appreciate that the baby may at least need some sort of legal check-up.

Justice Kennedy's interesting interest

In the course of my Legal Affairs debate last week (available here), I lamented that the Blakely line of cases has a troublesome "binary" quality because some matters of relevance at sentencing are getting labeled "elements" (or the functional equivalent), in which case the full panoply of constitutional procedural rights are deemed fully applicable. But other matters, so-called "sentencing factors," garner the application of very few procedural rights. As I explained in the Debate Club:

Instead of relying on the Sixth Amendment to regulate sentencing procedures in this binary way, I might have preferred the Supreme Court to have developed more nuanced sentencing regulations through the Due Process Clause in order to give legislatures (and sentencing commissions) more flexibility to develop other procedures that would protect defendants' rights at sentencing.

Because of this view, I was quite intrigued when at oral argument Justice Kennedy seemed interested in exploring with Acting Solicitor General Paul Clement whether different sorts of facts might justify different sorts of treatment under the Blakely rule. Though the oral argument transcript (whenever it is available here) will reveal that this line of questioning did not go anywhere, I am somewhat hopeful that Justice Kennedy may try to develop a more nuanced approach to the (still developing) Blakely doctrine as the Justices start writing all this up.

Specifically, I would think it could be very beneficial for the Supreme Court to start working through a distinction between "offense facts" and "offender facts." It make a lot of sense to me — and even loosely fits with the existing Apprendi/Blakely jurisprudence — to require the government to prove to a jury beyond a reasonable doubt any and every fact relating to the offense, but to allow facts relating to the offender to be treated "administratively" under more lax procedures (see generally my post here distinguishing adversarial and administrative justice).

Helpfully, some courts and commentators have already started working through distinctions of this sort. Most notably, as explained in State v. Kaua, 72 P.3d 473 (Hawai'i 2003), the courts of Hawai'i have developed a jurisprudence in which so-called "intrinsic factors" are "required to be pled in the indictment and found by the jury" because they "are contemporaneous with, and enmeshed in, the statutory elements of the proscribed offense." Whereas, in contrast, so-called "extrinsic factors," which are factors "separable from the offense itself in that they involve consideration of collateral events or information" can be "found by the sentencing court after the defendant's adjudication of guilt at trial by the trier of fact." Similarly, in articles such as Kyron Huigens, Solving the Apprendi Puzzle, 90 Geo. L.J. 387 (2002), and David Yellen, Illusion, Illogic, and Injustice: Real Offense Sentencing and the Federal Sentencing Guidelines, 78 Minn. L. Rev. 403 (1993), and others, commentators have done important work exploring the nature and consequences of different sorts of facts for proof and procedure purposes.

Of course, as Hawai'ian jurisprudence reveals, a distinction between intrinsic and extrinsic facts is not self-defining. Or, slightly recast, there can be reasonable disputes over what qualifies as an offense fact and as an offender fact (e.g., role-in-the-offense might be arguably in either or both categories). Nevertheless, redefining Blakely's rule in terms of requiring jury trial and proof beyond a reasonable doubt not of all sentence-enhancing facts, but just of all sentence-enhancing "offense facts" I think advances the ball usefully. At the very least, I think an offense/offender distinction could be a more fruitful jurisprudential foray than the tail-wagging-dog jurisprudence that Justice Scalia regrets having lost in footnote 13 of his Blakely decision.

A Fall Classic?

With a full slate of baseball playoff games starting today, hard-core baseball references will likely pervade this blog in the weeks ahead. As noted here and here, there are many compelling MLB playoff stories, and it is great fun to talk about Blakely through the lens of baseball lore. For example, it is easy to think of (Yankee fan) Justice Scalia as something of a modern-day legal Babe Ruth, with Blakely perhaps being his called shot.

Today I am thinking about whether we will have a World Series champion or a decision in Booker and Fanfan first. I encouraged guessing about the likely date of a ruling here, and a knowledgeable SCOTUS-watcher yesterday suggested November 1 as when we would see a decision (note that this schedule indicates the World Series will be wrapped up no later than October 31).

Though I continue to expect to see a decision in Booker and Fanfan sometime in November, the need for a quick ruling is considerable and yesterday's argument has me thinking we might see a decision this month. That possibility leads me to ask who could be the Supreme Court's "Mr. (or Ms.) October"?

Justice Thomas seems to have a bit of swagger like Reggie Jackson, the original Mr. October, and it is fun to speculate about the Justice's views on Booker and Fanfan. As is his custom, Justice Thomas did not say a word at yesterday's oral argument. But he has been one of the most "vocal" Justices in the Apprendi line of decisions, and I think there is a real chance he will get to write the opinion for the Court in Booker and Fanfan.

In honor of the greatest month in sports, I highly encourage readers to use the comments for more baseball-Blakely talk. Should we think of Justice Breyer as Abner Doubleday or Alexander Cartwright because of his role in creating the federal guidelines? Is Justice O'Connor the High Court's Jackie Robinson for breaking through the SCOTUS gender line (and might that in turn cast Justice Ginsburg in the role of Satchel Paige)?

What was not discussed at oral argument

Posts here and here and here provide a sea of coverage of what was said at yesterday's oral argument in Booker and Fanfan. As many of these media and blog accounts highlight, there was plenty of discussion of how present and future federal sentencings might be handled in the wake of Blakely. (It is worth remembering here that if (when?) Congress gets involved, the realities of Ex Post Facto doctrine will limit its ability to impact existing cases; any changes which operate to lengthen federal sentences can only have prospective application.)

But not discussed at all during the argument was the critical question of how past cases could be impacted by Blakely — that is, no one mentioned the issue of retroactivity in any way. This is not really surprising; the retroactivity issue was not formally before the High Court in Booker and Fanfan, nor was it mentioned at all in any of the briefs. However, as I noted here and here, whatever the Justices say in Booker and Fanfan could have at least an indirect impact on the realities and the perceptions of whether the Blakely rule must be applied to sentences that became final before June 24, 2004.

Moreover, my crackerjack research assistant recently pointed out to me that in the modern uber-case on retroactivity, Teague v. Lane, 489 U.S. 288 (1989), Justice O'Connor writing also for Chief Justice Rehnquist and Justices Scalia and Kennedy suggested that "the question whether a decision announcing a new rule should be given a prospective or retroactive effect should be faced at the time of that decision." Id. at 300 (citation omitted). Obviously, the Supreme Court did not speak directly to retroactivity issues in Blakely. Indeed, the High Court has not yet even officially addressed Apprendi's retroactivity, even though Ring's non-retroactivity was settled with Shriro (see here and here for some general discussion of Blakely retroactivity issues).

I would be surprised if Booker and Fanfan formally address retroactivity questions, though there is certinly a huge prison population eager to make Blakely claims even when sentences long ago became final. As but one example, consider the recent state case of People v. Schrader, 2004 WL 2192550 (Ill. App. 1 Dist. Sept. 30, 2004): a defendant sentenced in 1982 raised Blakely to assail his 70-year murder sentence because the sentencing judge was able to add 30 years to the defendant's maximum sentence based on the find that the defendant's behavior was "brutal and heinous."

Reflections on the arguments on severability

Ultimately, the real action in Monday's argument concerned severability because the five Justices in the Blakely majority essentially decided Blakely's applicability to the federal system when they decided Blakely. Everyone understood back in June the impact of the ruling in Blakely for the federal system, and Fanfan's lawyer Rosemary Scapicchio astutely started her argument by reminding the Court that the government argued back in Blakely that if the Washington guidelines fell then so would the federal guidelines. (Indeed, Scapicchio came very close to accusing the SG of flip-flopping.)

On the issue of severability, Tom Goldstein's post here and a report from Mark Stancil here provide some helpful (though distinctive) head-counting of the Justices' apparent views on severability. What fundamentally makes this issue so hard is that the two primary options facing the Court both seem problematic: the SG's argument for advisory guidelines, as Justice O'Connor observed, seems to fly directly in the face of Congress's obvious interest in creating binding sentencing guidelines; the defense bar's argument for jury fact-finding is a potential administrative nightmare because of how many complex factual issues the guidelines sometimes make relevant to sentencing.

However, as I have detailed in a number of posts (see here and here), I do not think the mess created by jury fact-finding would be so great, and I think the mess created by treating the guidelines as advisory in some cases would be considerable. Justices Stevens and Scalia both seemed to appreciate this first reality: at oral argument, Justice Stevens embraced the idea beautifully developed in the NAFD's amicus brief that plea deals will take care of most cases and trials can be adjusted in the remaining cases, and Justice Scalia suggested that the consequences of applying Blakely to the guidelines would have just a "one-shot impact" for on-going cases.

Moreover, because everyone seems to want the guidelines to apply in cases without Blakely factors, as Tom Goldstein explains here, I do not see how the Court could ultimately adopt the SG's "dual system" proposal. Two judges who have really grappled with the SG's dual system proposal (Judge Gertner in Meuffleman and Judge Presnell in King) have forcefully explained the illogic and inconsistency with congressional goals of uniformity which results from having the guidelines fully applicable in cases without Blakely factors, but wholly advisory in cases with Blakely factors.

Mreover, even putting aside concerns of logic and congressional intent, I just do not understand how the SG's proposed dual system goes about deciding which cases are in which system. Let's consider, as just one example, the Enron defendants. I believe these defendants had their indictments "Blakelyized;" because the government is alleging some Blakely factors, it would seem the Enron defendants if/when convicted would be subject to advisory guidelines sentencing. But what if the defendants contest the alleged Blakely factors? Does the judge have to make an initial determination of whether a Blakely factor exists to answer the threshold question of whether the guidelines will be binding or advisory? Critically, in order for plea negotiations to be able to develop effectively, the parties are going to want to know which sentencing system is going to apply as soon as possible. But it is hard to understand exactly when and how that determination is to be made; indeed, it seems possible that the "which system" determination could change at the last minute if/when a probation officer discovers some unrealized Blakely factor during a pre-sentence investigation.

The defense lawyers have complained the SG's proposed dual system permits prosecutorial manipulation because a prosecutor could allege or not allege a Blakely factor depending upon which system the prosecutor wants applicable. But, critically, the dual system would also be subject to defense manipulation. If a defendant thinks he might do better with advisory guidelines, he might try to concoct a minor Blakely factor — e.g., offer a $10 bribe to the probation office to implicate the obstruction of justice enhancement — with the goal of freeing the judge from the guidelines. And, in addition to the struggles the parties will have at the charging and plea stages if they cannot know what system of sentencing will apply, probation officers may be placed in a very difficult position if their pre-sentence reports are going to have a dispositive impact on whether the guidelines are fully applicable or wholly advisory.

In sum, though the idea of making the guidelines advisory on the surface appears more tenable than requiring jury fact-finding, the nuts-and-bolts challenges of administering a dual sentencing system seem enormous. Perhaps defense attorneys and line prosecutors will report in the comments that they can envision how such a dual system would work, but I suspect it is an idea that (like alternative sentencing) makes a lot more sense in theory than in practice.

Monday, October 04, 2004

Reflections on the SG's argument on Blakely's applicability

Arguing for the government, Acting SG Paul Clement very effectively framed the issues facing the Supreme Court in an effort to highlight the "carnage and wreckage" that would flow from applying Blakely to the federal guidelines. Clement noted at the outset that there are 1200 federal criminal sentencings each week, and he suggested they could all be suspect if Blakely applies to the federal system. He also strongly argued that Dunnigan, Witte, Watts and Edwards all conveyed a particular understanding of the guidelines as distinct from the statutory maximums enacted by Congress.

Clement cleverly focused on the fact that in Watts essentially the whole court, save Justice Stevens, in summary fashion rejected a challenge to the use of acquitted conduct in guidelines sentencing. He also ultimately asserted that the key precedent really at stake was Mistretta, as he suggested that Mistretta itself would have to be reversed because the respondent’s argument would essentially mean that the US Sentencing Commission has functionally created elements for thousands of new federal crimes.

I think Clement is right when saying that extending Blakely to the federal guidelines would essentially overrule Watts. But that is, in my view, another argument for extended Blakely. Every year I teach Watts in my sentencing courses, and every year students are aghast that the existing guidelines require judges, based on preponderance findings, to enhance sentences based on facts relating to charges on which a defendant was acquitted. It is very hard for a criminal justice system to endorse Watts and also claim to have a serious commitment to the jury right.

But I think Clement is wrong when saying that extending Blakely to the federal guidelines would essentially overrule Mistretta. This claim is based on the assertion that extending Sixth Amendment rights to guideline factors would turn them into de facto elements. But because such guideline factors require judges to impose longer sentences, they truly are already de facto elements (and this is why Ex Post Facto law limits the application of new guidelines to old cases). In other words, defendants now feel substantively the impact of guidelines factors as if they were elements, and the SG is just arguing that defendants should not be provided the usual procedural protections that accompany such elements. This is what gives the government's argument a "through the looking glass" quality: according to the government, defendants get full procedural rights when Congress substantive increases sentences, but they do not get these rights when a (less democratically accountable) administrative agency increases sentences.

As I noted in a prior post and as others have noted throughout the blogsphere and in the media, it does not seem Clement was winning any converts with his (well crafted but very uphill) arguments. Indeed, the most interesting interchange during this part of the argument was when Justice Kennedy started to explore with Clement whether different facts might get different treatment under the Blakely rule. This led me to wonder whether Justice Kennedy was hoping to engineering a more nuanced approach to the (still developing) Blakely doctrine. No one followed Justice Kennedy's lead at oral argument, but I think he may be on to something that could merit some time and energy as the Justices start writing all this up.

Read (and read some more) about the oral argument

Helpfully, fellow bloggers and the traditional media continue to do a great job covering the essentials of today's SCOTUS arguments. The SCOTUS Blog has great posts by Tom Goldstein here and here, and the Blakely Blog fills out its play-by-play here and here.

I have no plans to try to replicate any of these efforts. Rather, in a series of posts to follow tonight and tomorrow, I plan to contribute a variety of reflections about a variety of aspects of the arguments. I'll start, in a few minutes, with reflections on the Petitioner's arguments on applying Blakely to the federal guidelines.

First reactions to the Booker/Fanfan oral argument

Though I will need many, many posts to fully capture my take on today's oral argument, a few moments of wireless access allow me to provide some quick first reactions.

First, I agree with Tom Goldstein's post here that the Blakely five will stay together to apply Blakely to the federal system. The pre-argument buzz was that Justices Souter and Ginsburg might shrink away from extending Blakely, but their questions to Acting SG Paul Clement (who did a brilliant job) suggested that they both were firm on this issue.

But oral argument also suggested everyone is still struggling with the remedy after concluding Blakely applies to the federal system. Justice Stevens pressed the SG about how many cases would really be impacted if Blakely applies to the guidelines, and this may be a critical concern for the Justices as they work through the severability question. (This also lead me to reiterate the plea I made here for the US Sentencing Commission to shed more light on this issue by making widely available whatever data it has assembled).

How (and when) the Justices will sort through the severability matters remains the biggest question in my mind after hearing today's arguments. More commentary -- a lot more -- later tonight.

One last revving up for First Monday

I could not help but post one more time this morning to highlight that fellow bloggers are likely to have nearly up-to-the minute reports on today's arguments in Booker and Fanfan, or at least so claim Howard Bashman at How Appealing here and Jason Hernandez at the Blakely Blog here.

I expect that in the wee hours tonight I will have a chance to review their accounts and provide my own perspective on today's big argument. In the meantime, remember you can check out some of my recent posts of note here and other Blakely basics here.

Sunday, October 03, 2004

A final gearing up

I likely won't get a chance to post at all tomorrow as I spend the day around the Supreme Court and attend the Booker and Fanfan arguments, and then fly back home in the evening. I plan to report on the arguments no later than Tuesday, though I suspect traditional media outlets will do a better and quicker job than me on the essential play-by-play.

As a final prep for the big day, Linda Greenhouse has here her preview of the coming SCOTUS term, with Booker and Fanfan getting the lead. And The Christian Science Monitor has this thoughtful article about these cases. And Jason Hernandez of the Blakely Blog has done some interesting forecasting here about the oral argument and here about the possible outcome in Booker and Fanfan.

And away we go

Today marks First Monday Eve, a day that is always exciting for a law geek like me. And in today's newspapers, we find still more interesting SCOTUS preview articles (previous pieces in this genre can be found here and here). For example, this article suggests we can expect a "nuts-and-bolts term," while this preview article predicts "more drama," while this article optimistically asserts that the High Court will "clarify confusing opinions." Distinctly, here is an interesting op-ed about Justice Clarence Thomas, and Howard Bashman at How Appealing has his usual comprehensive coverage for your reading pleasure.

But of course, for a sentencing geek like me, First Monday this year is extra exciting because of the Booker and Fanfan arguments scheduled for tomorrow afternoon. And today's papers have some effective coverage of these cases: this article does a nice job going over the basics, as does this article from Maine which also gives special attention to the Fanfan case. This piece from Oklahoma discusses the local angle vert well, as does this piece from California (despite misspelling Blakely). And, not surprisingly, this article at law.com provides the most legalese about the case in its review of the parties' arguments.

Joyously, thanks to a long-time friend and colleague, I was able secure a ticket to tomorrow's argument. I head to DC later this morning and may be off-line until Tuesday morning while traveling (though I do hope to have a hotel internet connection late tonight). Though I would blog live from the SCOTUS argument if that was permitted, I may not get a chance to report on the arguments until Tuesday. Helpfully, Jason Hernandez of the Blakely Blog reports here that has made arrangements for transcription of his thoughts of the big event and I would expect the big hitters at the New York Times and Wall Street Journal will do a great job reporting on the argument in the more traditional media outlets.

Saturday, October 02, 2004

Acting SG Clement to argue Booker and Fanfan

As noted in this post by the folks at the SCOTUS Blog, Acting Solicitor General Paul Clement (background here) will be arguing for the United States in Booker and Fanfan. I believe this is a bit of news because Deputy Solicitor General Michael Dreeben is reputed to be the "point person" on these cases, and he argued on behalf of the United States as amici in Blakely.

The SG's chaos strategy

I have suggested here and here that the government's proposed remedy, if Blakely applies to the federal guidelines, seems likely to cause far more chaos than a ruling that the federal guidelines are fully severable. A recent district court decision, US v. McBride, 2004 U.S. Dist. LEXIS 19558 (D. Kan. Sept. 28, 2004), confirms some of my views on this important issue.

In McBride, US District Judge Julie A. Robinson, in addition to writing a thoughtful opinion which details the state of Blakely in the federal courts, carefully and effectively explains how the defendant's sentence would be unchanged even if Blakely applies to the federal system.

First, Judge Robinson explains that the defendant's admissions and the prior conviction exception mean that "even if Blakely extends to the federal sentencing guidelines, this Court can apply the career offender guideline without violating the defendant's Sixth Amendment rights." Second, Judge Robinson explains that, though a Blakely-implicated and factually-disputed gun enhancement was arguably applicable, "whether or not the gun enhancement is applied, application of the career offender guideline results in an increase to Level 34" in the determination of the defendant's offense level.

In other words, if Blakely applies to the guidelines and the guidelines are fully severable, McBride gets no "sentencing windfall" and apparently would have no sentencing issues to appeal. But, the government's position is that the guidelines become completely inoperative and wholly advisory in cases with Blakely factors; that would entail in McBride an initial (appealable?) issue as to whether McBride is or is not a "Blakely case." And if qualifying as a "Blakely case," then the guidelines would be completely inoperative and wholly advisory, and defendant McBride could then argue for a sentence lower — perhaps much lower — than the nearly 22 years he received for his drug offense.

Notably, in an effort to cover all her bases, Judge Robinson did close her McBride opinion by stating: "And, if the federal sentencing guidelines were declared facially invalid, in imposing a sentence under the indeterminate regime predating the Sentence Reform Act, this Court would impose the very sentence it imposes now." This statement might readily lead one to conclude that McBride would get the exact same sentence under the government's theory of severability.

However, under the government's severability theory, I believe McBride would now have a lot of appealable issues: (1) McBride might be able to object (and appeal) that, as a matter of due process, he should have had an opportunity to present evidence on a variety of "offender" issues — e.g., family circumstances, drug dependency, lack of guidance as a youth — that are not generally pertinent in guidelines sentencing; (2) McBride could object (and appeal) that Judge Robinson never explained why a 22-year sentence for a relatively minor drug offense constituted a "sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment specified in the Sentencing Reform Act (which, under the government 's theory, becomes the controlling legal standard for the imposition of sentences under 18 USC 3553(a)).

In the end, I believe the SG's lawyers are all much too smart not to see the many flaws and headaches in the government's own severability arguments. I am now of the belief that the government is simply trying to make the post-Blakely world of federal sentencing seem extremely chaotic in the hope that some member of the Blakely majority might become afraid to apply Blakely to the federal system.

Bench memos, mooting and more questions

I hope to spend this weekend watching important baseball games, a Big Ten battle and perhaps some golf, though I may also take the family to see this Nemo wannabe. But I would guess that SCOTUS clerks may be spending this weekend putting the finishing touches on their Booker/Fanfan bench memos and that counsel are conducting moot courts to help prepare for Monday's big argument.

Though I suggested some pre-argument readings here, it would probably be more helpful to clerks and counsel to return to possible questions for oral argument. Here are a few more kicking around my brain:

To the lawyer for the government: Does your argument that Blakely does not apply to the federal guidelines because Blakely was just an application of Apprendi risk making Blakely fully retroactive to June 2000 for all the states?

To the lawyers for the defendants: What should happen in the thousands of cases "in the pipeline" in which defendants entered pleas before Blakely and in plea agreements acknowledged and agreed to judicial application of the guidelines?

Friday, October 01, 2004

Pre-argument reading guide

If you've read all the briefs in Booker and Fanfan (or at least the Blakely Blog's synopses), and you are wondering what else to read to prepare for Monday's arguments, I can make a few classic suggestions.

Of course, you could read the entire line of cases culminating in Blakely, which principally includes Almendarez-Torres v. US, 523 U.S. 224 (1998), Jones v. US, 526 U.S. 227 (1999), Apprendi v. New Jersey, 530 U.S. 466 (2000), Harris v. US, 536 U.S. 545 (2002), Ring v. Arizona, 536 U.S. 584 (2002). Helpfully, all these cases (as well as some related others) can be found at this helpful page assembled by the First District Appellate Project.

In addition, I would also recommend a read of the cases which have historically sanctioned the application of lax procedures at sentencing, most particularly Williams v. New York, 337 U.S. 241 (1949), McMillan v. Pennsylvania, 477 U.S. 79 (1986), and US v. Watts, 519 U.S. 148 (1997). Then, for an ineresting contrast, consider reading In re Winship, 397 U.S. 358 (1970).

Finally, though this might require a trip to the library, consider reading the text that helped launch modern sentencing reforms, Judge Marvin Frankel's Criminal Sentences: Law Without Order (1972). Judge Frankel highlighted that sentencing disparities in discretionary sentencing systems were a symptom of the greater disease of "lawlessness in sentencing." He said disparity was the inevitable result of a system that lacked guiding standards and thereby forced each judge to rely upon his or her own individual sense of justice when selecting an offender's sentence. Recognizing that "lawlessness" was the fundamental problem in discretionary sentencing systems, Judge Frankel called for "remedies by lawmaking" — i.e., the development of a "code of penal law" which would "prescribe guidelines for the application and assessment" of "the numerous factors affecting the length or severity of sentences."

Critically, Judge Frankel's classic tome included an entire chapter entitled "The Dubious Process." In this chapter, Judge Frankel noted the absence of significant procedural safeguards in discretionary sentencing decision-making, and he suggested that the lack of procedural regularity contributed to "a wild array of sentencing judgments without any semblance of consistency." Frankel expressed particular concern about how information considered at sentencing was assembled and examined. Judge Frankel lamented that courts at sentencing were relying "for grave decisions . . . upon untested hearsay and rumor," and he expressed concerns that "presentence investigation represents a sudden and total departure from [a court’s usual] fact-gathering procedures," because it provides information that is not "exposed to adversary scrutiny, to rechecking at sources, to cross-examination."

Of course, for your reading pleasure, I now have nearly 500 posts here on the blog (most of which are on Blakely topics). And some recent posts of note are assembled here. And I encourage readers to use the comments to suggest other must-reads.

Making book on Booker and Fanfan timing

Last month I discussed here the need for a quick ruling in Booker and Fanfan and speculated about when we can expect the cases to be decided. I am getting more and more questions of late about timing, and I continue to think mid-November is a reasonable prediction. (Notably, the Minnesota Sentencing Guidelines Commission says in its recent report "the consensus among many in the legal field is that a ruling will be forthcoming by the end of this year.")

Thursday, September 30, 2004

Interesting Blakely views

This morning I came across two interesting opinion pieces relating to Blakely. First, in this editorial from the Seattle Times concerning an election for an open seat on the Washington Supreme Court, there was this fascinating Blakely-related passage:

[Candidate Jim] Johnson is a strict constructionist, and would be more likely than [rival Mary Kay] Becker to invoke the Constitution to strike down a law. Becker, the former legislator, says, "One of the rules we follow is, you don't reach for the Constitution right off the bat." She stresses that the court's decisions have to be practical, so that people can live with them.

Despite this difference, Johnson and Becker both support the U.S. Supreme Court's Blakely decision. There, the court said that in sentencing a felon, a judge could not add three years for cruelty if the cruelty had not been proven to a jury. "The right of trial by jury is fundamental," Becker said. "Those might sound like 'liberal' sentiments, but they are really also conservative."

Meanwhile, on the other side of the country, according to this story coming from Duke University, esteemed Duke University Law Professor Erwin Chemerinsky says Justice Stephen Breyer should recuse himself from Booker and Fanfan:

"There's no doubt that Stephen Breyer is one of the 'parents' of the federal sentencing guidelines," said Chemerinsky.... "When he was the Chief Counsel to the Senate Judiciary Committee, he played a key role with regard to the Sentencing Reform Act [passed in 1984], which created the Sentencing Commission that created the guidelines. Justice Breyer was also on the first Sentencing Commission that created the guidelines in the very structure at issue in these cases, though by that time he was a First Circuit judge. Should a justice who played such a key role in developing the sentencing guidelines now participate in considering their constitutionality?

"My own opinion is that he should recuse himself," said Chemerinksy, who has two cases currently on the Court's docket, as counsel and co-counsel. "I don't think a member of Congress who participated in sponsoring a bill or drafting legislation should then, on the federal court, rule on the constitutionality of that, and I think Justice Breyer is in the same position."

Many thanks to Professor Paul Caron, of TaxProf Blog fame, for the pointer to the Chemerinksy article.

Tuesday, September 28, 2004

Gearing up for SCOTUS oral argument

Yesterday the Supreme Court issued this intriguing order concerning oral argument time in Booker and Fanfan:

The motion of respondents for divided argument is granted. Each counsel must be prepared to discuss both questions presented. The motion of Ad Hoc Group of Former Judges for leave to participate in oral argument as amici curiae and for divided argument is denied.

Thus, Judge Martin will not have a chance to expound upon his strange claim (discussed here) that the federal guidelines are "more analogous to the traditional indeterminate scheme" than to the guidelines system at issue in Blakely.

Meanwhile, Tony Mauro has a very interesting preview article (available here with subscription) at law.com entitled "Sentencing Tops High Court's New Term." The article includes a robust debate between legal ethics Professors Monroe Freedman and Steven Lubet about whether Justice Breyer ought to recuse himself because he helped to draft the federal sentencing guidelines as a member of the original US Sentencing Commission.

In addition, showing what a good reporter he is, Tony was able to "force" me and former SG Kenneth Starr to make these predictions about the likely outcome in Booker and Fanfan:

"The five justices in the Blakely majority really believe in it," says Berman. "It would be a stunning about-face if any of them said it does not apply to the federal guidelines."...

But former Solicitor General Kenneth Starr thinks the Court will recoil at the prospect of the turmoil such an outcome would trigger, with issues such as retroactivity likely to result in hundreds or thousands of sentencing appeals.

"This Court tends not to like disruptive movements," says Starr, now dean of Pepperdine University School of Law. Starr predicts a majority of the Court will find a way to uphold the federal guidelines.

Though I am not inclined to question the informed insights of a former SG, I cannot help but have two reactions to Ken Starr's comments: (1) how do we explain the Blakely decision itself if the Court does not like "disruptive movements"? and (2) does he and others realize, as I explained here, that the SG's proposed argument for upholding the federal guidelines could actually be a more disruptive and tumultuous ruling because of its impact on the retroactive application of Blakely in the states.

Give the SG points for persistence

The Acting Solicitor General's reply brief (available here) makes a game effort to stick to its game plan, but both the reasoning and the strategy still leaves me puzzled. Let me detail some initial questions/concerns here:

On the applicability of Blakely to the federal sentencing guidelines: The logic of the SG's argument now seems to be that applying Blakely to the guidelines would essentially convert all guideline enhancement into elements, which is constitutionally problematic because only Congress can pass criminal statutes that create elements. It is a nice effort, aided clearly by the work of the Fourth Circuit in Hammoud, to try to make this case about the validity of Mistretta rather than about defendants' constitutional rights. But each step in this argument creates new puzzles.

First, it is long-established and essentially uncontested that Ex Post Facto doctrine limits the application of new guideline provisions; but that conclusion seems subject to the same concerns that the SG now raises about the application of Blakely. If treating the guidelines as the functional equivalent of statutes/elements for Ex Post Facto purposes has long been accepted and thought appropriate, I do not see why doing the same for the Sixth Amendment should be a real concern.

Second, though the line of cases culminating in Blakely have thrown around the term "element," the Court has also emphasized that effects and not form dictate the reach of the Sixth Amendment. Call it an element or a factor or Mary Jane, when the law makes a fact essential to the legal upper-limit of available punishments, five member of the Supreme Court have now said consistently for five years that such a fact must be proven to a jury beyond a reasonable doubt.

Third, as I suggested here in discussing Hammoud, there is a "through the looking glass" quality to the government's argument, especially given the Framers' apparent interests in democratic checks and balances and in safeguarding individual rights through the Bill of Rights. The consequence of the SG's argument, as I understand it, is that if and when Congress creates binding sentencing laws though traditional legislative means (securing approval by both houses and signature by the President), then defendants have the benefits of full constitutional procedural rights in the application of those laws. But if and when Congress finds a way to writing binding sentencing laws through non-legislative means (e.g., by creating an agency whose rules will be deemed legally binding despite never being traditionally enacted), then defendants have no procedural rights in the application of those laws.

On the severability of the federal sentencing guidelines if Blakely applies: The SG finally bites the bullet and explains with a bit more candor its complete views on severability. Parole is not back: footnote 3 of the SG's reply brief says the abolition of parole can be severed. Indeed, it seems all part of the SRA remain in place except the guidelines are no longer binding. But, clarifies the SG, the guidelines are completely jettisoned only in cases with Blakely factors, the guidelines should still apply with full binding force in cases without Blakely factors. The SG concedes that this suggested "use of two different sentencing schemes would no doubt lead to less proportionality and uniformity in sentencing," but that apparently is the price we must pay to avoid the prospect of "windfall sentences."

As I have explained here and here and here, the SG's proposed dual system with advisory guidelines in Blakely cases raises a host of critical administrative questions. But, most fundamentally, it makes it especially important, as I suggested here, to know exactly how many cases have Blakely factors. If only 20% of all federal cases have Blakely factors, the impact of the SG's proposed dual system with advisory guidelines used in 1 in 5 case is not all that dramatic. But the SG in its reply brief now represents that 65% of cases involve Blakely factors, which would mean that the SG is now urging the use of an advisory guideline system (a system which we know was expressly rejected by Congress when passing the SRA) in roughly two-thirds of all federal cases.

Beyond all these concerns, I wonder if DOJ and the SG fully appreciate the potential for bizarre and harmful gamesmanship which could (and likely would) result from its proposed dual sentencing system. Consider a defendant in a case without Blakely factors who might reasonably think she has a chance of a lower sentence without the guidelines' limits on the consideration of mitigating circumstances. (Martha Stewart or the defendant in this Ninth Circuit case come to mind.) That defendant would seem to have an incentive to obstruct justice, in order to create a Blakely factor, so that then a judge could be free to sentence lower than the guidelines.

Does DOJ really want a sentencing system in place which could create incentives for defendants to obstruct justice? Or, more importantly, do we really think this model of dual sentencing which could create these incentives better comports with Congress's goals when passing the SRA than simply requiring the government to actually prove all sentencing-enhancing guideline facts?

Monday, September 27, 2004

Please, please share your data USSC

I have a lot to say about the reply brief filed today by the Acting Solicitor General in Booker and Fanfan, and I hope to comment at length about the substance of the brief in future posts. But I have to note one fascinating, and disconcerting, representation in the SG's reply brief concerning the number of cases that involve Blakely factors.

As highlighted here, I have long been wondering about exactly how many federal cases involve Blakely factors; this seems like a very important fact for many reasons. Critically, last week, the Wall Street Journal reported (as noted here) that, "according to a U.S. Sentencing Commission internal memo," "[m]ore than 44% of all cases in 2002" involved Blakely factors. But we hear a quite different story on page 19 of the SG's reply brief:

The Sentencing Commission advises that, based on staff analysis of 2002 statistics, approximately 65% of federal criminal cases are projected to involve the application of sentence-enhancing Guidelines factors.

And two months ago a US Sentencing Commissioner was quoted (as noted here) saying that only 20% of all federal cases involve Blakely factors.

Whatever the reality, I really wish the USSC would share the data it has assembled in its "internal memo" with the rest of the world ASAP. I suppose I am glad to hear that the press, and not just DOJ, gets access to US Sentencing Commission data analysis, but how about the rest of us? Needless to say, the work of the defense lawyers who filed briefs last week might have been enhanced, to everyone's benefit, if all counsel in Booker and Fanfan had access to this information.

Especially since the number of Blakely-impacted cases is a very important issue, and one that the Wall Street Journal and the Acting Solicitor General apparently assess quite differently, it would be helpful if the USSC would at this critical time make its work public. I trust the USSC has nothing to hide and that many benefits would flow from having this information publically available.

Sunday, September 26, 2004

Carefully thinking through "sentencing chaos"

There is no question that, as noted here and here, sentencing in the federal system has been chaotic in the wake of Blakely. However, the amicus brief filed by the NAFD makes (at p. 2) this provocative (and I think accurate) statement about the chaos:

For those who practice criminal law in the federal courts every day, the only chaos has been caused not by applying Blakely to federal criminal cases, but rather by those trying to avoid its application or to force its reconsideration.

The whole NAFD brief seeks to document how the "requirements of Blakely are assimilated readily into the federal sentencing scheme, with little or no change to current statutes or rules." Id. And district court decisions such as O'Daniel (discussed here and here) and Johns (discussed here), as well as the on-going cases detailed in the NAFD brief, certainly seem to back up the NAFD's assertions.

As a thought experiment, it is fascinating to imagine what the last three post-Blakely months might have looked like if DOJ and the US Sentencing Commission had tried to make lemonade from what they thought was a Blakely lemon. Surely the multi-directional circuit splits noted here and the wild variations in district court practices would not have been as diverse and dramatic if DOJ was not pressing arguments that seem to fly in the face of Blakely's holding and express language. (Of course, the decision by DOJ to "Blakely-ize" indictments highlights it did have the good sense to "preserve" on-going federal cases even while arguing Blakely's inapplicability.)

Though allocating blame for the last three months is certainly fun, I am more concerned now with the future than the past. And my review of the respondents' briefs in Booker and Fanfan have me convinced that chaos will continue to reign supreme if the SG prevails on its severability claims. I have highlighted before here and here and here various questions and concerns about the SG's severability claims, and the respondents' briefs only deepen these worries. I am hopeful, but not all that optimistic, that these questions and concerns will be addressed in the SG's reply brief.

Most pressing now, in my mind, is some account by the SG of how advisory guideline sentencing is supposed to work. The Fanfan brief astutely notes that the SG "devotes some 23 pages to attacking jury factfinding [but] begins and ends its discussion of advisory Guidelines in just over one page." Fanfan Brief at pp. 48-49. Even putting aside the initial critical questions of whether all or some cases get "advisory" treatment and what comes of all the Blakely-ized indictments, I am very curious as a matter of substance and procedure how advisory guideline sentencing is supposed to operate.

Here are just a few of the many questions I have about the operations of a guideline-advisory world:

1. What should a probation officer put in presentence report (PSR)? For the guidelines to truly be advisory, PSRs would still need to include guideline calculations (still based, I would assume, on both charged and uncharged facts that compell guideline enhancements). But, to aid a court exercising its (now unfettered) sentencing discretion, shouldn't a PSR also cover a broad range of "offender" issues — e.g., family circumstances, drug dependency, lack of guidance as a youth — that are not generally pertinent in guidelines sentencing? Recall that the SG asserts that still operative is 18 USC 3553(a), which mandates that a judge "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment specified in the Sentencing Reform Act. It seems that a lot of mitigating "offender" facts — which have been deemed "not relevant" or "not ordinarily relevant" by the Commission in its binding guidelines — would become very relevant if the guidelines became merely advisory.

2. What should prosecutors and defense counsel put in sentencing memoranda to the court? Would prosecutors and defense attorneys be able to contest, either factually or legally, aspects of the PSR's advisory guideline determinations? Especially because these calculations might prove to be legally significant for Due Process/Ex Post Facto reasons, I would suspect that even advisory calculations might need to be heavily litigated (and perhaps subject to appeal, see point 4 below). And, in addition to raising issues about the shadow calculations, would prosecutors and defense attorneys then have separate sections in sentencing memoranda with arguments and recommendations concerning various "offender" issues — e.g., family circumstances, drug dependency, lack of guidance as a youth — that are not generally pertinent because binding guidelines declare them largely off limits?

3. What decision-making process must a sentencing court employ? Would a district judge have to resolve on the record factual disputes over advisory guideline calculation? Would departures still play a role at this stage — i.e., if a court would have departed (up or down) if the guidelines were binding, would that (possibly important but still hypothetical) decision need to be explained and justified on the record? When turning to the application of its discretion, would the court need to give a hearing to defendants interested in presenting evidence concerning various "offender" issues — e.g., family circumstances, drug dependency, lack of guidance as a youth? Again, recall that these offender issues arguably become legally significant to the extent a sentencing judge is required, pursuant to 18 USC 3553(a), to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment specified in the Sentencing Reform Act.

4. What happens to and during appellate review? The SRA's appellate review provision, 18 USC 3742, does provide for "plainly unreasonable" review when "there is no sentencing guideline." What will that mean in a world with advisory guidelines, and how might Due Process and Ex Post Facto claims fit into this strange new world of appeals from advisory guidelines? Would a defendant be able to raise claims about a PSR's or a district judge's "advisory" guideline calculations? Will a defendant be able to argue simply that an imposed sentence, no matter how low as compared to the advisory guidelines, was still "greater than necessary" to comply with the purposes specified in the Sentencing Reform Act?

Because I am in the ivory tower and not "on the ground" with the courts and lawyers handing out 65,000 federal sentences per year, perhaps I am mistaken that the SG's arguments raise all these challenging questions. (Indeed, I hope folks who are "on the ground" might use the comments to help me work through these issues.) But everything I have read is pointing me to the view that the SG's arguments on severability will actually create more, not less, sentencing chaos. Of course, there is that ever-present worry that some defendants might get a "sentencing windfall," SG brief at 68, but I will try to explain further tonight why even that concern may be something of a red herring.

Wednesday, September 22, 2004

Brief brief comments

Slowly and not so surely, I am working my way through some of the Booker and Fanfan briefs filed yesterday (available here and here). I have decided to focus first on the amicus briefs, in part because it is fun and interesting to see the different ways that different folks talk through similar issues. In this vein, the NAFD brief earns significant bonus points for (quite effectively) seeking to discuss distinct issues in distinct ways; the WLF and NYCDL briefs earn a few demerits for (somewhat ineffectively) seeking to avoid the severability issue.

Though in-depth comments will come later, I want to note here how interesting it is to read these briefs while thinking about Blakely as a decision seeking to vindicate democratic values (as suggested here), or as a decision seeking to vindicate an adversarial system of justice (as suggested here and here).

Critically, from these perspectives, the initial question of whether Blakely should apply to the federal guidelines becomes easier: the fact that the federal guidelines were created by an unelected administrative agency makes them even more problematic under either theory of Blakely. And yet, the subsequent severability question is arguably harder if one fully embraces the "democracy" or "adversarial justice" reading of Blakely: the fact that the federal guidelines were created by an unelected administrative agency may suggest that no part of this system ought to be salvaged. (Of course, as detailed in so many posts in this space, any and all of these visions of Blakely's principle has to be weighed against post-Blakely pragmatism. The NAFD brief is so potent because it works through the important pragmatic concerns in unique and effective ways.)

Putting all of this together, I have of late come to think of Justice Scalia's decision in Blakely as the ultimate vindication of his dissent in Mistretta. This, in turn, leads me to wonder about other equally historic and consequential examples of a judicial "I told you so!"

Here come the amici for Respondents

In what I suspect is just the first two of a number of amicus filings, I have received the amicus briefs being filed by Families Against Mandatory Minimums and by the National Association of Criminal Defense Lawyers with the Supreme Court today in the Booker and Fanfan cases. The FAMM and NACDL efforts, both which address the applicability of Blakely to the federal guidelines and severability issues, can be downloaded here:

I hope to add any and all the other amicus filings I receive to this post and to use a separate post for the filings of the parties. Check back in later in the day, since I believe all the briefs must be filed this afternoon.

Wednesday, September 15, 2004

An amicus brief on waiver

Yesterday I received a final copy of an amicus brief filed in support of the respondents in Booker and Fanfan. (I suspect that this will be the first of many such amicus briefs; I speculated with my class yesterday that there might be as many as a dozen amicus filings in support of the respondents.)

This first amicus was filed by the Office of the Federal Public Defender in the Northern District of Texas, and interestingly it does not directly address a specific issue before the Supreme Court in Booker and Fanfan. Rather, as the brief explains, it is addressed to "the issue of whether a simple admission of facts, other than the fact of a prior conviction, can function as a waiver of constitutional rights." The brief was needed, explains the author, because it "appears from the caselaw, commentary, and the known positions of the parties that this important issue will not be addressed."

The brief, which can be downloaded below, is an interesting read. Here is the conclusion, which sums up the brief's main points well:

Blakely, citing Apprendi, discussing Almendarez-Torres does not support the proposition that a defendant can waive constitutional rights by simply admitting facts, which are not facts related to a prior conviction, that increase the relevant statutory maximum sentence. Any such statement is contrary to this Court’s precedent. The defendant, however, can admit facts in conjunction with a valid waiver of enumerated rights that will allow the judge to increase the relevant statutory maximum sentence. As part of this procedure, the sentencing court must fully inform the defendant of the rights being waived and the results of such a waiver. Only then will a defendant knowingly and voluntarily have waived constitutional and statutory rights....

The bottom line is that the application of Blakely to the Federal Sentencing Guidelines, when combined with admitted facts and valid waivers, will result in defendants actually receiving the guideline range that they bargained for: this would be real "truth in sentencing."

Monday, September 06, 2004

Blakely, federalism, retroactivity and pragmatism

As I noted before here, it is significant and telling that no states have filed briefs in support of the federal government's position in Booker and Fanfan. And upon re-reading the briefs seeking to distinguish the federal system from the rule in Blakely, I was struck particularly by the federalism ironies in this chapter of sentencing reform and also by how the SG's arguments may sell out the states on the important question of Blakely's retroactivity. Let me explain:

1. The federalism ironies. Thoughtful observers of modern sentencing reform — from the ABA in its Standards for Criminal Justice to leading academics (see, e.g., Michael Tonry, Sentencing Matters (1996), Richard Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty-Year Retrospective, 12 Fed. Sent. Rep. 69 (1999)) — consistently report that state sentencing reform efforts have generally been successful while federal efforts have not. In Professor Tonry's words, "Few outside the federal commission would disagree that the federal guidelines have been a disaster [while] state guidelines [have] turned out ... surprisingly well." Sentencing Matters at pp. 9-13.

Yet now the SG and USSC are arguing that the distinctive features of the federal system — e.g., that the federal guidelines are (mostly) written by a (mostly ineffectual) commission and that they are (extremely) complicated and require punishment for uncharged conduct — should exempt the federal guidelines from the constitutional rule articulated in Blakely. The first irony is that highly questionable legal distinctions are being made in an effort to "save" perhaps the only guideline system that does not deserve saving. The deeper federalism irony is that arguments for a "federal exemption" to the Blakely rule are being made to a Rehnquist Court that has sought to reinvigorate federalism concepts by exempting states from federal legal burdens.

2. The states' retroactivity problem. Inherent to the SG's argument that Blakely does not apply to the federal guidelines is the assertion that Blakely was just an application of the Apprendi rule. See SG Brief at 18 ("Blakely thus applied the rule of Apprendi"); see also USSC Brief at 18-19. In other words, to exempt the federal guidelines from Blakely, the Supreme Court would essentially have to hold that Blakely was not a new rule, just an application of the rule announced in Apprendi. But so holding would then seem to require states to apply the (not-new) Blakely rule to all convictions not yet final when Apprendi was decided in June 2000.

In other words, the argument the SG is making in an effort to "save" the current federal sentencing system (which, by most accounts, is not worth saving) could have the effect of destroying at least four years of past state sentencing outcomes. Following the SG's arguments to its logical conclusion entails that the argument for exempting the federal guidelines from Blakely is not pragmatic at all, since pragmatically speaking such a ruling will create many more headaches and problems for state sentencing systems than it might save for federal sentencing. Thus, despite my earlier suggestion here that the federal debate over Blakely is a dispute between principle and pragmatism, I now realize that both principle and pragmatism support the application of Blakely to the federal system.

Great brief, wrong case: the three Senators' brief

The Senators' amicus brief provides an excellent recap of the history of the Sentencing Reform Act and its intended remedial effect. Notably absent from the Senators' amicus brief is any discussion whatsoever of the Sixth Amendment, in fact it is not even mentioned!

Indeed, I was struck while reading the brief that it would be an extremely effective in a case challenging mandatory minimum sentences or the provisions of the Feeney Amendment. The three Senators' brief stresses that the Sentencing Reform Act of 1984 (SRA) "intended sentencing judges to have flexibility to move a sentence both upward and downward within the applicable guidelines range based on an individualized consideration of the offender and his offense and, in unusual cases, to depart upward or downward outside of the guidelines range." Yet mandatory minimums and the Feeney Amendment do far more to undermine this intended "flexibility" and "individualized consideration" than would a holding in Booker and Fanfan that defendants have a right to have proven beyond a reasonable doubt facts requiring enhanced sentences.

Of course, Justices Kennedy and Breyer both appreciate that mandatory minimums undermine the laudable goals of the SRA. Justice Kennedy in his Koon decision stressed the importance of judicial departure authority within the SRA, and he has long assailed mandatory minimums as "unwise and unjust." (See, most recently, this important speech to the ABA last year.) Similarly, Justice Breyer has long lamented the impact of mandatory minimum statutes on the operation of the guidelines system he helped create:

[S]tatutory mandatory sentences prevent the Commission from carrying out its basic, congressionally mandated task: the development, in part through research, of a rational, coherent set of punishments.... Every system, after all, needs some kind of escape valve for unusual cases.... For this reason, the Guideline system is a stronger, more effective sentencing system in practice.

In sum, Congress, in simultaneously requiring Guideline sentencing and mandatory minimum sentencing, is riding two different horses. And those horses, in terms of coherence, fairness, and effectiveness, are traveling in opposite directions. [In my view, Congress should] abolish mandatory minimums altogether.

Speech of Justice Stephen Breyer, Federal Sentencing Guidelines Revisited (Nov. 18, 1998), reprinted at 11 Fed. Sent. Rep. 180, 184-85 (1999). Indeed, Senator Orrin Hatch himself has long been on record noting the major faults of mandatory sentences and calling for a complete reexamination of the issue. See Orrin G. Hatch, The Role of Congress in Sentencing: The United States Sentencing Commission, Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System, 28 Wake Forest L. Rev. 185 (1993).

In other words, as I have stressed in my own writings, the SRA was a great piece of legislation, but the federal sentencing system in practice has not in fact achieved its laudable goals. That is why I have suggested here that there is a strong case to be made that applying Blakely to the federal guidelines would in fact help give effect to the intent of Congress in enacting the SRA.

The three Senators' brief does not even mention the Sixth Amendment perhaps because it hard to argue that respecting defendants' rights to have facts proven to a jury beyond a reasonable doubt itself undermines the goals of sentencing reform. Of course, Justice Scalia and four other Justices obviously understand this when they stress that Blakely "is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment." And these realities in part explain why I have speculated here that Justices Kennedy and Breyer may join the "Blakely five" before any Justice in that group shrinks away from carrying the Blakely principle to its logical conclusion.

Thursday, September 02, 2004

Swing(ing) Justices?

I have a lot more to say about all the Booker and Fanfan briefs filed yesterday (available here and here), but a thoughtful reader suggested an interesting idea/question to keep in mind when reading (or re-reading) the SG's brief. The idea/question is: "Who is the government attempting to peel off from the Blakely majority?"

As I have been repeatedly saying to the students in my sentencing seminar, there is an interesting history and story connected to each of the nine Justices in the whole Apprendi/Blakely line of cases. Because of their forceful opinions in a number of cases, it seems unlikely either Justice Stevens or Thomas is likely to shrink from applying Blakely to the federal guidelines.

Some might say the same about Justice Scalia, though the thoughtful reader notes that given Justice Scalia's "break from the pack in Harris and his much-rumored initial dissent in Ring," Justice Scalia might "be looking for ways to cabin the pro-defendant effects of his brightline position." Since Justice Scalia was the swing (silent) vote in Harris, this speculation is sensible. However, I really think Justice Scalia would have written Blakely much differently if he wanted to save the federal system, and I also think he is much too smart to not have realized the seismic impact his broad Blakely language would have on the federal system.

Justices Ginsburg and Souter have said the least "on the record" in this line of cases, though Justice Ginsberg wrote the important Ring decision (which extended Apprendi to capital sentencing and reversed a recent precedent to do so) and Justice Souter wrote the important Jones decision (which first articulated the key language that became the Apprendi rule). In addition, both Justices signed on to Justice Thomas' forceful dissent in Harris.

Finally, I also think it is worthwhile to speculate about whether any of the Blakely dissenters might now "switch teams." My instinct is that Chief Justice Rehnquist and Justice O'Connor would be unlikely to ever play a role in the federal aftershocks of Blakely's "Number 10 earthquake." But Justices Kennedy and Breyer have such a dynamic history in expressing their views about both the doctrines and policies of federal sentencing (consider cases like Koon and the public speeches they've both made about problems with federal sentencing policies and practices). And Justices Kennedy and Breyer have both in cases like Ring and Harris said interesting things about the logic and reach of Apprendi.

Though Justices Kennedy and Breyer obviously did not want to extended Apprendi to guideline sentencing, now that the Blakely earthquake has happened, I think either or both might be more inclined to actively help with post-Blakely clean-up efforts rather than continue complaining about the ground shaking.

Wednesday, September 01, 2004

The judges' amicus brief

With sincere thanks yet again to my many new friends "in the field," I now have a copy of (and provide below) the brief submitted on behalf of a group of former federal judges (who were apparently led by former SDNY US District Judge John Martin).Download booker_fanfan_judges_amicus.pdf

I am slowly but surely "consuming" all the rich and interesting briefs filed today, and I hope to comment at length about them tomorrow and throughout the long weekend ahead.

And the briefing begins...

I have on good authority that two amicus briefs have already been filed in Booker and Fanfan. One is reportedly on behalf of "an ad hoc group of former federal judges in support of neither party," and the group apparently consists of 19 former judges. Unfortunately, I do not (yet) have an electronic copy of that brief.

I do have a copy linked below of the other brief, which is in support of the petitioner and comes from three noteworthy US Senators: The Honorable Orrin G. Hatch, The Honorable Edward M. Kennedy and The Honorable Dianne Feinstein. The brief's statement of the question presented should give you a flavor for its contents:

Whether, or to what extent, the Court should give effect to the intent of Congress in enacting the Sentencing Reform Act of 1984 to eliminate the intolerable disparities that had plagued the federal sentencing system by creating an integrated and cohesive sentencing guidelines system.

Though I have to dash to class and then a faculty meeting, I hope to have more information about all of today's briefing (and also more documents for downloading) before the close of business today.

UPDATE: With thanks to many "field correspondents," I now have and provide below the Solicitor General's brief in Booker and Fanfan. More briefs will be posted if and when I get them, and commentary will be posted in the wee hours.Download sgs_booker_and_fanfan_brief.pdf

Monday, August 23, 2004

Sorry, Washington, no rehearing in Blakely

As Lyle Denniston reports here over at the SCOTUS Blog, the Supreme Court today denied Washington's petition to rehear its ruling in Blakely. Of course, as Lyle notes, though the Court has now officially refused to "rehear" Blakely, it will certainly have occasion to "reconsider" the scope and meaning of the Blakely decision through US v. Booker and US v. Fanfan on the first day of the new term, October 4.

The denial of this rehearing petition, though not unexpected, is still in my view important. Though I know better than to read too much into unexplained refusals to hear particular cases, the denial of Washington's petition suggests to me that there are not five votes on the Supreme Court in support of radically rethinking the entire Apprendi/Blakely line of cases — even though the rehearing petition (available here) made a pretty compelling case for such a radical rethinking.

So, with Washington officially shut out of the SCOTUS Blakely action for now, I wonder if Washington or other states plan to file amicus briefs in Booker and Fanfan. Obviously, the fates of state sentencing systems are not directly at issue in these federal sentencing cases. But Booker and Fanfan will have to — or at least should— provide some fuller account of what the heck Blakely really means, and thus I suspect at least a few states might want to share their views as amici. Of course, if they want to speak on these issue, states (and others) need to move fast. Briefs in support of petitioners (DOJ) and briefs not in support of either party are due September 1. Briefs in support of respondents (Booker and Fanfan) are due September 21.